Re Dewi Ratna

CACV 373/2021, [2026] HKCA 1433

On appeal from [2021] HKCFI 2149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 373 of 2021

(ON APPEAL FROM HCAL NO 2763 of 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 27 July 2021, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 2149.

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 22 November 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 February 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.This appeal was listed to be heard on 21 February 2022. The applicant was directed to lodge two sets of skeleton argument on or before 24 January 2022 and was warned that if she failed to do so, she would be deemed to have waived her right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper. The direction and the warning were communicated to the applicant by the Notice of Hearing dated 28 December 2021.

4.The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1. Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process. Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants. Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal. In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not permitted, and this court has taken a firm stance on the requirement to lodge skeleton argument. Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

5.As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. We have proceeded to consider this appeal on paper based on the available materials.

Background

6.The applicant is a national of Indonesia. She entered Hong Kong on 9 June 2008 and was permitted to remain as a visitor until 9 July 2008. She did not leave and had overstayed since 10 July 2008. By way of an undated written signification which was received by the Immigration Department on 12 November 2012, she raised a torture claim which was rejected on 6 May 2013. On 13 December 2013, she raised a non-refoulement claim on the basis that, if she returned to Indonesia, she would be harmed or killed by her stepmother Sumini. Details of the applicants’ claim were summarised by the Deputy Judge at [4] to [5] of the Leave Decision.

7.By a Notice of Decision dated 15 February 2018, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds other than torture risk[1], namely, BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from her stepmother upon her return to Indonesia as low.  The Director also considered that state protection would be available to the applicant and on the basis of the Country of Origin Information, internal relocation alternatives would be available and reasonable to the applicant.

8.The applicant appealed against the Director’s Decision to the Board and attended an oral hearing before the Board on 28 September 2018 with the assistance of an interpreter.  The Board dismissed her appeal on 22 November 2018. The Board found her oral evidence unreliable and was not convinced that Sumini would pursue her, harm or kill her if she returned to Indonesia. Having assessed the evidence, the Board was not persuaded by her claim and further found that state protection and internal relocation would be available to the applicant. Accordingly, as the applicant failed to substantiate her claim, her appeal was dismissed by the Board.

The Leave Decision

9.On 5 December 2018, the applicant filed a Form 86 and a supporting affirmation applying for leave to apply for judicial review of the Board’s Decision. No ground of review was given by the applicant in her Form 86 or supporting affirmation. As the applicant did not request for an oral hearing, her application was considered by the Deputy Judge on paper.

10.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review for the following reasons:

“12.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

14.  The Court does not find any error of law or procedural unfairness in the Board’s findings.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

16.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.”

The Appeal

11.On 2 August 2021, the applicant filed a Notice of Appeal against the Leave Decision.  In gist, the applicant contended in her Notice of Appeal that the Court and the authorities did not exercise caution and diligence in handling her case as a self-represented litigant. She alleged that the Deputy Judge’s failure to acknowledge her language incapability was unfair to her. She also asserted that she did not have language and legal assistance at all material times and was unable to understand all the documents and legal jargons which was unfair to her. She further claimed that during the Board’s hearing, although she was provided with an interpreter, she was not able to identify any errors in the Director’s Decision because of her education level and that she was unrepresented. She claimed that she did not have any other choice but to adopt the information of the hearing bundle and the whole hearing bundle was not read to her.

Discussion

12.The relevant legal principles governing the appeal in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap. 4A.

14.Applying the above principles, we are of the view that the applicant’s appeal is wholly without merit.

15.As a start, the applicant’s grounds of appeal were new and not raised before the Deputy Judge.  As this Court has repeatedly emphasised, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would generally not be entertained: see Re Daljit Singh [2018] HKCA 328 at [10]; Re Qadir Sher [2018] HKCA 160 at [11]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; and Re Sudimah [2019] HKCA 1030 at [12(3)].  On this basis alone, we will dismiss this appeal.

16.In any event, it is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as she desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  Neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration [2009] 2 HKLRD 346 prescribed that a CAT claimant or a claimant for protection against BOR2 or BOR3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].

17.We note that the court documents filed in this appeal and in the Court below were in English.  It is thus clear that either the applicant was herself conversant with the English language or she had access to language assistance of her own if she found it necessary. During the hearing before the Board, the applicant was also assisted by an interpreter and the Director’s skeleton submissions were translated to her to which she had no comment on[5]. The applicant also did not raise any complaint in relation to language or legal assistance before the Board or the Deputy Judge.

18.Furthermore, the applicant was legally represented before the Director.  Although she had no legal representation before the Board and the Deputy Judge, the assessment of her non-refoulement claim by the Board and the consideration of her application for leave to apply for judicial review by the Deputy Judge were thorough and fair.  We consider that a high standard of fairness had been achieved in the overall process of the determination of her non-refoulement claim.  Accordingly, her complaints are wholly without merit.

19.Having considered the materials before us, we have reviewed both the Board’s Decision and the Leave Decision and the reasons they gave for their decisions. We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions. The applicant had opportunities to plead and present her case before the Board and the Deputy Judge. The Board had weighed the evidence and considered her claim in detail and the Deputy Judge had also considered her application for leave to apply for judicial review in detail. In the absence of any error committed by the Deputy Judge, there is no basis to disturb the Leave Decision. 

20.For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person